[2] In a case where users Gap of the challenged mark " " "," filed a claim to confirm the scope of rights of a registered service mark " Eul against the holder Eul of the right to register the registered service mark " " " "," because the challenged mark constitutes a conspicuous geographical name, and thus the challenged mark does not have the effect of the right to registered service mark and the challenged mark is not effective pursuant to Article 51 (1) 3 of the former Trademark Act, the case holding that the judgment of the court below erred by misapprehending the legal principles in determining the scope of rights of the challenged mark

1. The judgment of the court below

According to the reasoning of the lower judgment, the lower court determined that the part of “private source” constituting the trademark subject to confirmation (hereinafter “instant trademark subject to confirmation”) falls under the scope of rights of the instant registered service mark (registration number omitted), on the ground that there is no ground that the effect of the right to registered service mark of this case does not extend to the trademark subject to confirmation.

A person shall be appointed.

2. Judgment of the Supreme Court

A. A trademark consisting of a conspicuous geographical name does not have the effect of trademark rights [Article 51(1)3 of the former Trademark Act (wholly amended by Act No. 14033, Feb. 29, 2016; see Article 90(1)4 of the current Trademark Act)]. The purport of this legal doctrine is to allow a person to freely use the trademark and not to grant a specific individual the exclusive license (see, e.g., Supreme Court Decision 98Hu1518, Nov. 26, 199). The term “real geographical name” in this context refers to a geographical name widely known to ordinary consumers. Whether a geographical name can be seen as a conspicuous geographical name should be determined by comprehensively taking into account the circumstances that may affect general consumers’ awareness, including textbooks, press reports, surveys, etc.

B. According to the reasoning of the lower judgment and the record, the following facts are revealed.

(1) Sariwon is the name of the area located in the Yellow Sea Islands in North Korea.

(2) During the Joseon Dynasty, Sariwon was the main point of traffic where the “won” was installed along with the Measures Institute, Hawon, Howon, Hawon, and Hawon. From the point of Japanese occupation, Sariwon was known to be the center of railroad traffic where the Hari Line and the Yellow Sea Line was located. Sariwon was on the city in 1947, and the Yellow Sea was divided into Yellow Sea and Yellow Sea in 1954, and it became the seat of the Do government office of Yellow Sea. The administrative district of North Korea was divided into 9Do1, Special Metropolitan City and 2 Metropolitan Cities around 196, which was the time when the decision to register the instant registered service mark was made, but Sariwon was not only at that time, but also at that time, the seat of the Do government office of Yellow Sea in North Korea.

(3) The textbooks and departments of social subjects in the Republic of Korea, middle and high schools published from the 1960s to the 2010s are continuously described or indicated in the direction, including the location of the Dog of Yellow Sea and the main points of traffic.

(4) In search via the Internet portal site, the newspaper articles related to Sariwon are mainly concentrated from the 1920s to the early 1940s, but even thereafter, Sariwon is mentioned as one of the cities representing North Korea in North Korea in North Korea, such as economic cooperation between South and North Korea.

(5) Meanwhile, around July 1996, around the time of the registration of the instant registered service mark, the registration was refused on the ground that the trademark consisting of “” only of a conspicuous geographical name.

C. As above, in light of the circumstances that private interest sources were widely known from the Joseon Dynasty to the deep west, as well as the fact that it still remains known as one of the cities representing North Korea through the Japanese colonial era, there is room to regard the trademark subject to the instant confirmation as a conspicuous geographical name widely known to ordinary consumers as at the time of the instant trial decision.

Nevertheless, the lower court determined that the part of the instant trademark subject to confirmation cannot be deemed to constitute a conspicuous geographical name. In so doing, the lower court erred by misapprehending the legal doctrine on conspicuous geographical name, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

The plaintiff's appeal is with merit without examining the remaining grounds of appeal, and the judgment of the court below is reversed, and the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices on the bench

Justices Kim Chang-suk (Presiding Justice)